Human Resource and Labor News

Pandemic Flu Prompts EEOC to Issue Guidance for Employers on ADA

December 1, 2009

With President Obama declaring a national emergency in response to the H1N1 influenza, commonly referred to as "Swine Flu," many government entities have encouraged employers to create their own plans for helping to prevent the spread of such an outbreak in workplaces across America, while ensuring continued business operations.  The latest government entity to issue such guidance is the Equal Employment Opportunity Commission (EEOC), which wants to ensure that Americans with disabilities and workers with a different national origin are not discriminated against during the flu-prevention process.

Although the EEOC Guidance on Pandemic Preparedness in the Workplace is not legally binding for employers, it sheds light on how the EEOC will interpret the regulations of the Americans with Disabilities Act (ADA) during investigations of ADA violations and other claims of discrimination.  For example, the guidance explains how the EEOC will interpret a "direct threat," a "reasonable accommodation," an "undue hardship," a "disability-related inquiry" and a "medical exam" when evaluating employer practices during or preparing for a crippling outbreak.  The guidance also states that directions from the World Health Organization (WHO), the Centers for Disease Control and Prevention (CDC), or other objective health organizations would determine the necessary precautionary measures to be taken due to the severity of the pandemic, and the EEOC guidance may then be modified accordingly.

The EEOC acknowledges that many employers have expressed concern about when to ask specific, personal questions of employees in response to preparing for a possible pandemic outbreak and have addressed these questions in the guidance, resulting in a list of employer practices that are permissible, depending on the severity of the outbreak at that particular time.  For example, before a pandemic, employers may ask questions that are non disability-related, such as if the employee will not be available, for any reason, to work during a pandemic outbreak, without requiring the employee to specify his or her reason for not being available, such as childcare or transportation issues, in order to help employers gauge the availability of their workforce during an outbreak for planning purposes.   Also, during a pandemic, employers may send home employees who are exhibiting flu-like symptoms, but they are not permitted to take the temperature of such employees to see if they have a fever, as this would qualify as a "medical exam" under the ADA.  The EEOC again states that although these are rules set forth right now, they may change depending on the severity of the outbreak and specific guidance issued by a federal, state or local health authority.

Construction employers are aware of the problems that a pandemic influenza outbreak can have on the productivity of the workforce including increased absenteeism that may cause an interruption in construction projects.  That is why it is important for employers to create workplace policies and procedures now that are available to the entire workforce, including workers with disabilities. 

For workplace resources and checklists on preventing the spread of influenza in the workplace, review the CDC's Communication Toolkit for Businesses and Employers as well as OSHA's Flu Pandemic Guide.